Arb-med procedures and enforcement in Hong Kong: The crest of the waiver?
Last month’s judgment of the Hong Kong Court of Appeal (“CA“) in Gao Haiyan and Xie Heping v. Keeneye Holdings and another CACV 79/2011, is the latest in a long line of cases demonstrating the pro-enforcement approach of the Hong Kong courts. The decision makes clear that it is not the place of the Hong Kong courts to comment on the merits of an arbitral award. Rather, the courts’ role in enforcing arbitral awards should be as mechanistic as possible. This is consistent with existing caselaw on enforcement and reinforces the respect of the Hong Kong courts for the finality of arbitral awards.
The CA in Keeneye reversed the much-discussed decision of the Hong Kong Court of First Instance [...]
A new year, a new start in India
On Tuesday, 10 January 2012, a Constitution Bench of the Indian Supreme Court began hearings in Bharat Aluminium v Kaiser Aluminium (Civil Appeal No. 7019 of 2005) and related matters to reconsider its earlier judgment in Bhatia International v Bulk Trading SA, (2002) 4 SCC 105 (“Bhatia”).
In Bhatia, the court held that the Indian courts could intervene to order interim measures of protection even in relation to arbitrations seated outside India. The court’s jurisdiction was invoked by a party seeking interim measures of protection in relation to an ICC-administered arbitration seated in Paris. Although section 9 of India’s Arbitration Act expressly empowers Indian courts to grant i [...]
Recent Swedish Ruling on Arbitrability
- By Ola Nilsson, White & Case LLP,
for White & Case
On 7 October 2011 the Svea Court of Appeal ruled on whether an arbitral award should be declared invalid or annulled because the dispute – as alleged by the plaintiff – was not arbitrable under the Swedish Arbitration Act.1 In finding that the dispute was arbitrable, the Svea Court considered several interesting issues analyzed below.
The background is as follows:
To build a golf course in Moscow, a Russian company (the “Russian Borrower”) had borrowed 22 million Swedish Crowns from a Swedish bank (the “Swedish Bank”) under a loan agreement entered into on 24 January 1990 (the “Loan Agreement”). The Loan Agreement included an arbitration clause providing for arbitration und [...]
New Hong Kong Arbitration Ordinance comes into effect
The new Hong Kong Arbitration Ordinance (Cap. 609) (the “Ordinance”) comes into effect today, having been approved by the Hong Kong Legislative Council at the end of last year. The Ordinance represents the culmination of many years of discussion and consultation and marks a significant milestone in the development of Hong Kong as a world-class international arbitration centre. Its stated intention is to facilitate the “fair and speedy” resolution of disputes, providing for maximum party autonomy and minimal court intervention (Section 3). In that respect, the Ordinance draws heavily on the internationally-recognised and accepted framework of the UNCITRAL Model Law (the “Model Law”), with [...]
Importing the “negative effect” of the principle of competence-competence into Swiss law?
According to article 7 of the Swiss Private International Law (PILA), if the parties have entered into an arbitration agreement, the Swiss Court before which the action is brought shall decline its jurisdiction unless it finds that the agreement is null and void, inoperative or incapable of being performed. An initiative to amend article 7 of the PILA statute in the sense that in international matters the arbitrators should decide themselves on their competence, is pending already for some time in the Swiss Parliament and in the last month discussions and diverging opinions have increased. The topic has only just been debated at a meeting of arbitrators and arbitration practitioners at the A [...]
The Swedish Supreme Court Emphasizes International Arbitration Law Principles
- By Anders Relden, White & Case LLP,
for White & Case
Clear tendencies towards an arbitration-friendly approach have been demonstrated by the Swedish Supreme Court during the latter part of 2010. During this term the Supreme Court has repeatedly taken an arbitration-friendly stance and emphasized that Swedish arbitration law and practice ought to be in line with international best practice in arbitration.
Sweden has a long-standing tradition as a seat for international arbitration and the Swedish legal framework has generally been perceived as arbitration friendly. In 2005 that perception was somewhat damaged when the Svea Court of Appeal, in Case No. RH 2005:1 (The Titan Corporation v. Alcatel CIT SA), held that the arbitral award in question [...]
